THE LOST PROMISE OF DISABILITY RIGHTS.

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Author: Claire Raj
Date: Mar. 2021
From: Michigan Law Review(Vol. 119, Issue 5)
Publisher: Michigan Law Review Association
Document Type: Article
Length: 26,096 words
Lexile Measure: 1870L

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Children with disabilities are among the most vulnerable students in public schools. They are the most likely to be bullied, harassed, restrained, or segregated. For these and other reasons, they also have the poorest academic outcomes. Overcoming these challenges requires full use of the laws enacted to protect these students' affirmative right to equal access and an environment free from discrimination. Yet, courts routinely deny their access to two such laws--the Americans with Disabilities Act (ADA) and section 504 of the Rehabilitation Act of 1973 (section 504).

Courts too often overlook the affirmative obligations contained in these two disability rights laws and instead assume that students with disabilities' only legal recourse is the Individuals with Disabilities Education Act (IDEA). Regrettably the IDEA is not capable of remedying all the harms students endure. In fact, the IDEA, by its terms, extends to only a subset of students with disabilities. Even so, courts force all students to exhaust the IDEA'S administrative procedures before invoking remedies under the other two disability rights laws. By narrowly construing antidiscrimination principles and ignoring the affirmative obligations contained in disability rights laws, courts unduly restrict students' protections under these laws.

This Article solves that problem by explaining and clarifying the nuance that drives confusion in this area: the difference between the IDEA'S guarantee of a free appropriate public education and the ADA and section 504's guarantee of equal access to public education. With that distinction clear, this Article disaggregates the types of claims that are most often erroneously obstructed by the IDEA'S exhaustion clause and then creates a framework that would allow courts to analyze and correctly apply the exhaustion clause. In doing so, it hopes to remove these laws from the IDEA'S shadow and renew their promise of equal access to educational opportunity.

Table of Contents Introduction I. An Assortment of Rights: Laws Protecting Educational Rights of Students with Disabilities A. The Individuals with Disabilities Education Act (IDEA) B. Section 504 of the Rehabilitation Act of 1973 and Title II of the Americans with Disabilities Act C. FAPE's Dual Meaning II. A Misperception of Rights: Applying the IDEA'S Exhaustion Clause A. Congress's Clarification of Disability Rights B. Lower Courts Continue to Restrict Rights C. The Supreme Court Examines Exhaustion 1. Fry: What the Supreme Court Said 2. Fry: What the Supreme Court Left Unsaid a. Disability Rights Laws Contain a Distinct FAPE Right b. Plain Language Matters c. The Past Is Not Prologue III. A Restriction of Rights: Lower Courts' Confusion Continues A. IDEA-Ineligible Students Are Forced to Exhaust B. Dually Eligible Students Are Forced to Exhaust C. Courts Misconstrue Preclusion 1. Conflating FAPE with Disability Discrimination 2. Requiring Intent to Recover Damages IV. A Resurrection of Rights: Disaggregating Claims A. Students with Eligibility Under Section 504 and the ADA B. Students with Eligibility Under All Laws 1. Infliction of Physical or Emotional Harm 2. Exclusion from the Educational Program 3. Denial of Equal Access Conclusion

Introduction

Two of the nation's most important civil rights laws...

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Gale Document Number: GALE|A658474112